Can retired justice John Paul Stevens turn back the clock on Plutocristan?

Wednesday

Apr 23, 2014 at 6:00 AM

By Peter S. Cohan WALL & MAIN

On April 9, I bemoaned the death of America and the birth of Plutocristan — a beast born of two Supreme Court decisions that I consider to be really bad. The first is the January 2010 Citizens United decision that turned corporations into people whose money it equated with speech — protecting it with the first amendment. The second was the April 2, 2014 McCutcheon decision that removed limits on how much individuals can spend on political campaigns.

It seems to me that these court cases create a new political system — Plutocristan — in which the golden rule prevails. Those with the gold rule and the other 99.99 percent have a voice that never reaches the ears of those who run the government.

So I was thrilled to read that I am not the only one who disagrees with these decisions. In an April 21 New York Times interview, retired 94-year-old Supreme Court justice John Paul Stevens said, "The voter is less important than the man who provides money to the candidate. It's really wrong."

Mr. Stevens was talking to the Times to promote his new book, "Six Amendments: How and Why We Should Change the Constitution." I was happy to learn that one of the six was designed to over-rule the Citizens United decision, which he wrote was "a giant step in the wrong direction."

According to the Times, Mr. Stevens' new amendment would "override" the First Amendment and allow Congress and the states to impose "reasonable limits on the amount of money that candidates for public office, or their supporters, may spend in election campaigns."

Regrettably, his proposed amendment would probably have some nasty side effects. For example, his response to a question about whether his proposed amendment would stop newspapers from spending money to publish editorials that endorsed political candidates his answer was a resounding "I am not sure."

Specifically, wrote the Times, Justice Stevens "stared at the text of his proposed amendment for a little while then said, 'The 'reasonable' would apply there or might well be construed to apply there.'"

I wish there was a way to repeal those two court decisions. But presuming that Mr. Stevens could come up with more acceptable language for his amendment, what would it take to make it part of the Constitution?

I had forgotten the answer, but my refresher course reveals the obvious — adding a new amendment to the constitution is arduous, and it must be approved by the very people whose finances such an amendment would diminish.

Article V of the Constitution provides authority and instructions for amending itself in two ways. All 27 amendments have used the first way: Congress proposes the amendment and the states ratify it. Another way is to convene a Constitutional Convention and then have the states ratify it.

The first approach would require the Stevens amendment to be debated in the House or Senate and then be passed by a two-thirds majority of both houses of Congress within seven years. From there, it would be a simple matter of publishing the proposed amendment in the Federal Register, getting 75 percent of the states to ratify the amendment. And once that happens, voila! The Constitution is amended. From there, you just certify the new amendment with the National Archives and publish it in the Federal Register.

I am sorry to say that I cannot imagine the Stevens amendment even being debated in either chamber. The reason is simple: There is not a single member of Congress who does not require millions of dollars to get into power and stay there. Since the Stevens amendment — if it went into law — would reduce the amount of money that could flow from corporations and individuals to those who aspire to get and keep Congressional power, its passage would make their lives more difficult.

The only reason I could envision that a member of Congress would allow debate on such an amendment is a cynical one. She could get the benefit of good press by arguing in favor of limiting money in politics, while at the same time relying on enough other members to vote against the amendment to make sure that it would never pass.

The only way I could imagine the political conditions changing enough for the Stevens amendment to pass is if something truly awful happens that is traced directly to a policy put in place as a result of unlimited corporate money in politics.

Since the Newtown Massacre in December 2012 did not lead to any legislation to limit guns in the general population — which would have threatened the mutated Second Amendment — I do not think it is possible for anything to happen that would cause Congress to debate a repeal of the severely mutated First one.

Plutocristan is here to stay.

Peter Cohan of Marlboro heads a management consulting and venture capital firm, and teaches business strategy at Babson College. His email address is peter@petercohan.com.